' MUHAMMAD ASHRAF LEGHARI, J.---This appeal is directed against the judgment, dated 18-9-1991 passed by Judge, Special Court for Suppression of Terrorist Activities, Larkana, in Special Case No,322 of 1999 under sections 365-A, 392, P.P.C. Read with section 34, P.P.C., whereby, the appellants are awarded sentence of imprisonment for life and their properties are forfeited under section 365- A, P.P.C. Read with section 34, P.P.C., and three years' R.I. For offence under section 392/34, P.P.C. And fine of Rs,1,000 each, and in default thereof, to undergo five months' R.I.
2. The report of this case was lodged by complainant Abdul Ghani with Police Station Gharhi Yaseen, District Shikarpur, bearing Crime No,76 of 1990 on 18-9-1990 at 17-30 hours, stating wherein that on 12-9-1990, he alongwith Gulzar Shah, was going on motor-cycle of his father, for obtaining certain insurance policies, when at about 8-45 a.m. On their way, they were held up by three persons, who were allegedly armed with gun, hatchet and a Lathi. They robbed them of motor- cycle and certain articles from them. Thereafter upto 13-9-1990, they were confined in a room and were asked to write a letter to their parents, demanding them, Rupees Five lacs as ransom money for the release of complainant and Gulzar Shah. On 14-9-1990, the complainant succeeded in untying himself and managed to come out of the room through ventilation. On coming out, he was encircled by some persons, who brought him before Nisar Ahmed Shah, whom, the complainant narrated this story. The names of the present appellants were introduced before the complainant by Nisar Ahmed Shah and he was released by him subject to the condition that he will not take any action against the said persons.
3. The police after recording the F.I.R., took up investigation and arrested the present appellants.
After completion of investigation, police submitted challan in the Court of A.D.M., Shikarpur, on 15-11- 1990, who subsequently sent up the case to the Court of learned Sessions Judge, Shikarpur.
Consequently, the case was transferred by the Sessions Judge, Shikarpur, to the Court of Judge, Special Court for Suppression of Terrorist Activities.
4. The prosecution examined Abdul Ghani, complainant Exh.3, Abdul Hakeem Exh.5, Gulzar Shah Exh.6, Sohrab Exh.7, Abdul Gafoor Exh.10, Nisar Ahmed Shah Exh.12, Sono Exh.13 and Investigating Officer Inspector Abdul Razzak Exh.14. Ultimately, the appellants were found guilty and were convicted by Judge, Special Court, in terms as stated above.
5. Mr. Safdar Ali Bhutto learned counsel for the appellants, at the very outset, has contended that complainant Abdul Ghani and Gulzar Shah are the only two star witnesses of this incident and they have contradicted each other on vital aspects of the case. He has further contended that the remaining witnesses have not supported the prosecution case, relating to the recoveries of motor- cycle and other articles. He has attacked the evidence of P.W. Nisar Ahmed Shah, who was declared hostile. The learned counsel further urged that F.I.R. Was recorded after six days and no plausible explanation explaining delay is advanced by the complainant. The learned counsel has pointed out some legal infirmities in holding the trial, inasmuch as, the compliance of mandatory provisions of section 265(c), Cr.P.C., was not made before the commencement of trial. He next contended that initial assumption of jurisdiction by the Judge of Special Court was illegal, which has vitiated the trial as a whole and cannot be cured under section 537, Cr.P.C.
6. Mr. Ali Azhar Tunio learned Additional Advocate-General has supported the impugned judgment of trial Court.
7. Perusal of the record shows that, two abductees: complainant Abdul Ghani and P.W. Gulzar Shah have given inconsistent stories, inasmuch as, one of the abductee namely Gulzar Shah did not support the case of. Prosecution and was cross-examined by the prosecutor. The main thing, which has disturbed our mind, is that, there are two abductees of this sensitive incident and both of them have given conflicting versions. So far as the evidence of abductee Gulzar Shah is concerned, it is of no use for the A prosecution. The prosecution is only left with the evidence of complainant Abdul Ghani. The misfortune is that, he has exaggerated the facts to the extent that we have been compelled to consider the same to be imaginary. He has gone to say that he got himself released and went to nearby Madarsa, where he found some students, reciting Holy Qur'an. He further stated in his deposition that he enquired from the students as to the whereabouts of their teacher, but they replied that, he had gone outside. He thereafter, stated that some people collected there, who took him to Nisar Shah. The aforesaid facts do not find place in the F.I.R. The complainant has contradicted himself from the initial story set up by him in the F.I.R.
8. The next point, on the basis of which, we have not been able to believe the evidence of complainant, is that, he has given the explanation for not lodging the report immediately after his arrival, as he was waiting for the arrival of his father, whereas his father Abdul Hakeem has stated before the Court as under:-- "I was in office of our company at Jacobabad. I was informed on telephone about abduction of my son. I proceeded to my house from Jacobabad. I reached my house at about 11-00 a.m. Up to that time, my son had not returned to house. On the next day, my son returned to my house...."
9. It also appears to be strange and unbelievable that when the complainant got himself released and contacted P.W. Nisar Ahmed Shah, he did not ask him about the release of his other companion, who was detained with the culprits.
10. The statement under section 164, Cr.P.C., of abductee Gulzar Shah does not contain anything about the ransom or chit. He has deposed in Court that culprits had not demanded money from them nor asked them for writing chit to their relatives. The Investigating Officer, has in this context, deposed that he has not been able to say anything about the chit Exh.3-B and he cannot say as to under what circumstances, it was recovered. There is nothing on record to indicate the fact as to how this chit regarding demand of ransom was recovered and who produced it in Court. Neither the abductee was recovered from accused nor was the ransom money proved to have been demanded or paid. The reference may be made to a case Manzoor Ali v. The State (1995 PCr.L.J 1394), wherein their Lordships have held as under:-- "It is settled law that the onus to prove the case against the accused lies on the prosecution and all that the defence is to do is to make a dent in the case of the prosecution. In the present case the above discussion would amply show that the defence has succeeded in making such a dent. Of course, section 8 of the Suppression of Terrorist Activities (Special Courts) Act provides for shifting of the burden to accused but that will be only in case where the prosecution has been able to prima facie establish that the accused are linked with the commission of the offence. In the present case neither the abductee has been recovered from the accused nor has the ransom money been recovered from them."
11. The aforesaid circumstances have created a serious doubt in our minds. The reference can be made to a case of Tariq Pervez v. The State (1995 SCM R 1345), wherein their Lordships have held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
12. The other witnesses including Mashirs Sohrab and Abdul Ghafoor have not supported the prosecution case regarding the recoveries of alleged motor-cycle from appellant Gulab and a bag from accused Shahzado. Both the abovementioned private Mashirs have not supported the recovery and were cross-examined by prosecutor. It would be unsafe to place reliance on the evidence of investigating officer under such situation and circumstances, when private Mashirs have not deposed in favour of the prosecution. The reference can be made to a case of Mishal Khan v. The State (1983 PCr.LJ 1628), wherein their Lordships have held as under:-- "9. In our view there is a distinction between a case, in which the prosecution may be unable to produce the two Mashirs to the recovery on the unchallenged ground that the same were won over and in a case in which the prosecution produces two Mashirs, but they do not support the prosecution case. In the former event, it may not adversely reflect on the prosecution case, but in the latter case, it may cast serious doubt as to the genuineness of the recovery."
13. It appears from the record that due to the reason that prosecution had no proof for ransom, therefore, the police had submitted challan in the ordinary Court and the case was sent up to the Court of learned Sessions Judge for trial, but subsequently, Sessions Judge, had transferred the case to Special Court. For that reason, in order to assume the jurisdiction and make himself justified, the learned presiding officer cross-examined the investigating officer to that effect. Be that as it may, as the point of jurisdiction was not raised in the trial Court, therefore, we refrain ourselves to comment upon this vital legal issue as the trial is concluded and conviction is awarded. Similarly, we also do not give any observation on the fact that compliance of section 265(c), Cr.P.C., was not fulfilled before the commencement of trial.
14. As, even otherwise, we have come to the conclusion that the prosecution has miserably failed to bring home the guilt of the appellants beyond any reasonable doubt.
' For the foregoing reasons, we are of the firm opinion that impugned judgment is not sustainable.
We had allowed this appeal and set aside the sentence by a short order, dated 5-10-1999 and these are the detailed reasons for the same.